Restrictive Covenants

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House Tape Measure

Many condominium and homeowners associations (HOAs) have an architectural control committee (ACC).  Oftentimes, the Board of Directors assumes the role of the ACC rather than having a separate committee.  Where the governing documents give the Board/ACC discretion over proposed architectural/exterior changes within the association, what are the limits to that discretionary power?

Facts

In a recent court of appeals case from the fall of 2021, intervening homeowners who were neighbors to a home subject to years-long litigation with the HOA appealed a trial court’s dismissal of their attempt to intervene.  These homeowners were disgruntled because they did not like the settlement that was ultimately reached between their neighboring homeowners and the HOA.
Continue Reading Architectural Control and your Community Association—Limits on the Discretion of the Board

Documents
Facts

In 2016, a Master Association adopted seven amendments to its declaration.  The amendments addressed the Master Association’s authority to approve proposed uses of certain buildings, increased assessments on them, and imposed additional restrictions on those buildings’ tenants.  In response, the building’s prior owner (“Building Owner”) filed suit against the Master Association and eight individual directors and officers, seeking six forms of relief: (1) a declaratory judgment concerning the legality of the amendments; (2) damages for tortious interference with a business relationship; (3) damages for breach of fiduciary duty; (4) an accounting; (5) a temporary injunction; and (6) a permanent injunction.
Continue Reading Amendments to Condominium Documents MUST be Reasonable to be Valid

Pencil Eraser
Facts

The property was subject to a discriminatory restrictive covenant recorded in 1953 that stated: “No race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.”  In 2017 Plaintiffs obtained the property by deed referencing that the deed was subject to covenants.  Plaintiff then filed suit to “have the discriminatory restrictive covenant declared void and to ‘strike that same subsection from public record and eliminating it from the title of the property.’” 
Continue Reading Covenants that Discriminate on Race – ARE STILL A PROBLEM

Solar Panels

When faced with a request by a homeowner or condominium owner to install solar panels at your association, your Board needs to determine a number of things:

  1. Whether there are restrictive covenants or rules that prevent the installation;
  2. What “solar access rights” if any exist under their state’s laws;
  3. What if any restrictions the Association wants and can place on the installation, maintenance, repair, replacement and removal of the solar panels;
  4. Who is paying for any of the maintenance, repairs or removal of the solar panels.

Continue Reading Solar Panels – What Your Association Should Do When Someone Requests to Install Them

Languages
Summary

Your Association should ensure that the language and definitions in governing documents reflect the intentions of the Association.  If they don’t, amend them, don’t just pretend they say something they don’t say

Facts

Sunburst Farms East (the “Association”) is a residential community consisting of four sections with individual lots (Sections 2, 3, 4, and 7).  Each Section had its own deed restrictions embodied in their own Declaration of Covenants, Conditions and Restrictions (“CC&Rs”).  Every property owner in each Section automatically became a member of the Association, which was created to provide water to its members.  Under the CC&Rs the Association could impose assessments on its members, even if they didn’t use the services.  Over time, a majority of the owners in Sections 3, 4 and 7 voted to amend their CC&Rs to revoke mandatory payment obligations, and Section 7 also voted to revoke automatic membership.

Obviously, this created differences between the various Sections, since they now had different rules.  In 2007, all four Sections attempted to amend the existing CC&R’s and stated in the document that all four Sections seek to amend their CC&R’s and the prior CC&R’s are superseded.  After an election, the CC&R’s were recorded because they had been allegedly approved by a majority of property owners in each Section.  In response to a suit brought by owners, the Association filed a suit seeking a declaration that the 2007 CC&R’s were valid.  During the suit, the owners learned that the CC&R’s had not in fact been approved by a majority of the owners in Section 7.  Therefore, these owners argued the 2007 CC&R’s were invalid.
Continue Reading The Language Used in Documents, Amendments and Motions Matters

Good Bye
Facts

In 2016, Plaintiff sent Defendants a letter telling them that the dog-breeding building (“kennel”) they built violated the restrictive covenants of the Texas association.  The restrictions had been recorded in 1981.  The letter stated that the kennel constituted a “noxious or offensive activity.”  Defendants tried sound proofing the kennel in response.  Plaintiff’s then sued seeking a declaration that the restrictions were valid and enforceable.  Defendants pled waiver and abandonment.

Question/Issue for the Court to Answer

Whether or not the restrictions were enforceable.
Continue Reading GOOD BYE: Association Who Fails to Enforce Covenants Loses Right to ENFORCE

Lake Party
Facts

The dispute in this case centered on what rights owners of lots that did not have frontage on a lake (“Non-Lake Lot Owners”) had to place a dock in the lake based on the restrictive rights for their homeowner’s association (“HOA”) which were recorded in 1922.  The HOA consisted of 146 lots.  All Non-Lake Lots were granted a perpetual easement over and across seven lakefront outlots for their use and enjoyment, including access to the lake.  Some of the Non-Lake Lot Owners construed this broadly enough that they installed a dock and used one of the outlots for activities unrelated to the water (picnics and such).  Plaintiff, a “Lake Lot Owner”, had a letter sent to the Non-Lake Lot Owner Defendants demanding that they stop using the outlot and remove the dock.  The parties disagreed.  Plaintiff sued.
Continue Reading HOAs & Riparian Rights-Can I Put a Dock Here?